This may be the most common criminal defense-related question that we hear from new clients. Everyone has seen police officers cuffing a suspect on Hawaii Five-O or other cop shows as they tell the suspect they have the right to remain silent, anything they say can and will be used against them, etc. sometimes with snarky variations…

And many people assume that this is required when police arrest someone. The truth is, in most cases, police do not have to read Miranda rights to a suspect when they arrest them.

When is it required, what does it mean if the police didn’t read Miranda rights to me, and when can I get my case dismissed?

If they don’t and if there is not a valid excuse, your case should be dismissed. This is a statutory requirement under SC’s mandatory DUI videotaping law that does not apply to any other type of case in SC.

What is the Remedy When Police Didn’t Read Miranda Rights to Me in SC?

In most non-DUI cases, it doesn’t matter.

If your case is not a DUI-related offense and you did not make any statements that the prosecutor intends to use against you at trial, there is no remedy.

The purpose of Miranda is to protect you from coerced confessions – confessions obtained when you did not have an attorney present and you did not know what your rights were. If the police do not comply with the requirements of the Miranda rule and they obtained incriminating statements from you, then the remedy is the exclusion of those statements at your trial.

Your case does not get dismissed (unless the confession was key evidence that the prosecution cannot go forward without), but the jurors will not hear the statements that you made to police.

What are the Requirements of Miranda in SC?

Police are required to read Miranda rights to you before questioning if you are in custody.

Although minor variations are sometimes permitted by the courts, the police must inform you that:

You have the right to remain silent;

Anything you say will be used against you in court;

You have the right to an attorney; and

If you cannot afford an attorney, one will be appointed to you by the court.

These days, police will usually have a “Miranda form” that lists your rights and confirms that you are voluntarily speaking to them – they will ask you to initial each item and sign to prove that you were told the rights and that you understand them.

The form is not necessary, and, on the roadside or in other settings where a form is not available, police will just read the rights to you or recite them from memory.

In many cases, motions to suppress statements taken in violation of Miranda will turn on questions like whether you were in custody at the time the statements were made, whether your statements were “spontaneous” or in response to questioning, or whether the Miranda rights were read to you before questioning.

What Does “In Custody” Mean?

“In custody” is not always as cut-and-dry as it sounds.

Obviously, if you are incarcerated in a jail cell, you are in custody. What if you are being questioned by police on the side of the road? In some cases, even if you are in handcuffs for an “investigative detention,” the courts may find that you were not “in custody” for purposes of Miranda.

If you voluntarily accompany police to the police station and give a statement to them, the courts may find that you were not “in custody,” even if the police intended to arrest you the entire time.

The standard is objective, not subjective – if a reasonable person in your position would have felt that they were free to leave, you were not in custody, regardless of what you actually felt or what the officers’ actual intentions were.

On the other hand, police cannot get around the Miranda requirements by detaining a person and then pretending that the person is free to go. For example, in State v. Hill, the SC Court of Appeals recently found that a defendant was in custody where:

He accompanied police to the police station but testified he felt that he had no choice;

Investigators did not record the first interview;

Investigators questioned Hill, then presented him with a waiver of rights form;

Hill told investigators he could not read the form because he did not have his glasses;

Investigators told Hill: “we didn’t tell you you couldn’t go home; we told you we could not make that decision until we find out what you have to tell us;”

Investigators told Hill he was not signing his rights away, just “waiving” them by “setting them aside,” and that “your rights are still there;” and

Investigators told him he was “probably going to jail tonight.”

The Court of Appeals found that a reasonable person would have believed they were in custody, the investigators should have mirandized Hill before they began questioning him, and therefore the statement was inadmissible.

But that wasn’t the end of it – after questioning him, the investigators took Hill to another room where they began video recording, mirandized him, and asked him to repeat the statements he had made before…

What if Police Read Miranda Rights in the Middle of an Interrogation?

The U.S. Supreme Court, in Missouri v. Seibert, shut down the practice of police interrogating a suspect, then mirandizing them and asking them to repeat their statements.

Which is exactly what the investigators did in State v. Hill. Because the investigators obtained incriminating statements from Hill without reading Miranda, then moved him to another room, mirandized him on video, and asked him to repeat the statements he had already made, the second statements should also have been suppressed at Hill’s trial.

Hill’s convictions were reversed and, unless the SC Supreme Court reverses the Court of Appeals, his statements will be inadmissible at his retrial.

The information contained on this website and our blog is not, nor is it intended to be, legal advice. Your visit to this website does not create an attorney-client relationship with Charleston, SC criminal defense lawyer Grant B. Smaldone. You should consult a licensed attorney for advice regarding your individual situation.